2016 Edition
CHAPTER 6
PROCUREMENT OF DESIGN-BID-BUILD CONSTRUCTION CONTRACTOR
COMPETITIVE SEALED BIDDING
(Procurements Greater than $50,000)
6.1 RELATED STATUTORY AUTHORITY
6.1.1 SC Code § 10-1-180 gives the State Engineer the authority and responsibility to determine the enforcement and interpretation of the building codes and reference standards on state buildings.
6.1.2 SC Code § 11-35-1810 requires that the responsibility of the bidder shall be determined for each contract let by the State.
6.1.3 SC Code § 11-35-3023(B) permits prequalification of construction bidders in a design-bid-build procurement for unique construction, or for projects over ten million dollars in value, in accordance with OSE criteria and procedure.
6.1.4 SC Code § 11-35-3020 requires that the agency send all responsive bidders a copy of the bid tabulation within 10 working days following the bid opening.
6.1.5 SC Code § 11-35-3020 permits negotiations after unsuccessful competitive sealed bidding within the limitations described by the law.
6.1.6 SC Code § 11-35-3030 requires that all competitive sealed bidding for state construction contracts in excess of $50,000 be provided with bid security.
6.1.7 SC Code § 11-35-3030 and 29-6-250 requires that all construction contracts valued in excess of $50,000 be provided with both a performance and a labor and material payment bond in the full amount of the contract.
6.1.8 SC Code § 11-35-4210 permits the State Engineer to resolve protested construction solicitations and awards.
6.1.9 SC Code § 40-11-260 requires general and mechanical contractors to be licensed for projects valued at $5,000 or more.
6.1.10 SC Code § 40-79-29 requires a valid license to engage in a burglar or fire alarm business or activity. Note that SC Code § 40-79-310 and § 40-11-410(5)(d) permits mechanical contractors with an electrical contractor’s license to design, install, and service fire alarm systems.
6.1.11 SC Regulation 19-445.2050 permits only the information disclosed at the bid opening to be considered as public information under the Freedom of Information Act until the Notice of Intent to Award is issued.
6.2 APPLICABILITY
6.2.1 SC Code Ann § 11-35-3005 provides a list of project delivery methods agencies are allowed to use on construction projects. One of these delivery methods is design-bid-build.
6.2.2 Pursuant to SC Code Ann 11-35-3010, an agency must make a written determination of the project delivery method that will result in the most timely, economical, and successful completion of the construction project and submit that determination to OSE for approval.
6.2.3 SC Code Ann Reg. 19-445.2145(B)(3) designates design-bid-build as an appropriate project delivery method for any infrastructure facility (except guaranteed energy, water, or wastewater savings contracts). The Agency will find a more detailed discussion of the determination of project delivery method as well as a model determination for design-bid-build in Chapter 2 of this Manual
6.2.4 SC Code Ann § 11-35-3015(2) provides that if the agency determines that design-bid-build is the most appropriate delivery method for the project, construction services must be procured through the competitive sealed bidding process as provided in SC Code Ann §§ 11-35-1520 and 3020.
6.3 ADVERTISING PROJECTS FOR BIDDING
SC Code Ann § 11-35-1520(3) & § 11-35-1550(3) and Reg. 19-445.2042
6.3.1 The competitive sealed bidding phase of a construction project begins with the advertisement of the project in South Carolina Business Opportunities (SCBO). It ends with the signing of the construction contract by both parties and the issuance of the Notice to Proceed.
6.3.2 The Agency must advertise all construction contracts with a construction budget exceeding $50,000 in SCBO. The SCBO advertisement is the official invitation for construction bids. The Agency may advertise in other media but errors in advertisements other than SCBO do not constitute a basis for a protest.
6.3.3 An Agency may submit advertisements for construction contracts within their construction procurement certification directly to SCBO using the SE-310, Invitation for Construction Services in Word format.
6.3.4 The Agency must submit advertisements for construction contracts that exceed the agency’s construction certification to OSE, using the SE-310, Invitation for Construction Services in Word format, for approval.
6.3.5 After a satisfactory review of the bid documents, OSE will approve the Invitation and submit it to SCBO for publication.
6.4 PRE-BID CONFERENCES AND SITE VISITS – SC Code Ann Reg. 19-445.2042
6.4.1 Agencies must advertise pre-bid conferences and site visits in SCBO.
6.4.2 The Agency should schedule the conference to occur no less than 14 days prior to bid opening. This will allow the Agency to clarify by addendum any issues bidders raise at the pre-bid conference
6.4.3 An Agency desiring to make potential bidders’ attendance at a pre-bid conference mandatory in order to bid the project must make a written determination that mandatory attendance is justified by the unique nature of the project and that a mandatory conference will not unduly restrict competition. The Agency must place this determination in its procurement file and provide a copy for information only to OSE with the SE-310.
6.4.4 Non-Mandatory Pre-Bid Conferences and Site Visits do not require attendance by prime bidders in order for them to bid a project.
6.4.5 Who Should Attend
A. The Agency, the Agency’s A/E, and the OSE project manager should attend all pre-bid conferences for projects exceeding the Agency’s construction contract certification.
B. On all other projects, the Agency may request an OSE representative to attend.
6.4.6 Conducting the Conference
A. The Agency or its A/E should conduct the pre-bid conference. Table 6.4-1 at the end of this chapter contains a list of suggested pre-bid discussion items. The Agency and its A/E should customize the actual list of discussion items for the particular project.
B. The Agency or its A/E should discuss the Bid Documents (project manual and drawings) at the pre-bid conference in sufficient detail to ensure that all prospective bidders understand the scope of the project.
6.4.7 Attendance at a Mandatory Pre-Bid Conference
A. If no prospective bidder, or only one prospective bidder, attends a mandatory pre-bid conference, the Agency may cancel the invitation for bid or schedule a new pre-bid conference that is either mandatory or non-mandatory.
B. If the Agency chooses to schedule a new pre-bid conference, it must advertise the conference in SCBO. The Agency should schedule this new conference to occur no less than 14 days prior to bid opening.
C. This may require the Agency to advertise a new bid opening date and time in SCBO at the same time it advertises the new pre-bid conference.
6.5 ADDENDA
6.5.1 The Agency must issue an addendum for modifications, corrections, or clarifications to the bid documents including, but not limited to, the following:
A. Providing a list of all firms represented at a mandatory pre-bid conference;
B. Providing responses to questions received from potential bidders during the bidding period;
C. Providing a list all substitutions approved by the Agency or design professional;
D. Providing clarification to items in the bid documents prior to the date for the receipt of bids;
E. A change in the date for the receipt of bids;
F. Rescheduling a bid opening; or
G. Canceling the invitation for bids.
NOTE: Meeting minutes from a Pre-Bid Conference/Site Visit are NOT to be included in an addendum. Only information that changes the contract documents should be included.
6.5.2 The Agency must issue all addenda modifying, correcting, or clarifying the bid documents at least 120 hours, exclusive of state holidays, prior to bid opening. If there are intervening holidays, the 120 hour period must be increased by 24 hours for each such holiday.
6.5.3 If the Agency becomes aware of a critical correction or clarification to the bid documents less than 120 hours prior to bid opening, the Agency should postpone the bid opening to allow issuance of the clarification a minimum of 120 hours prior to the revised bid opening time and date.
Example: Agency’s architect issues an addendum at 3 PM on a Thursday. 120 hours later is at 3 PM on the following Tuesday. However, the intervening Monday is a state holiday requiring the Agency to add 24 hours to the 120 hour time period for a total of 144 hours. Therefore, the earliest cut-off for receipt of bids is 3 PM on the following Wednesday.
6.5.4 A potential bidder may protest an addendum within 15 days of its issuance. See SC Code Ann § 11-35-4210(1)(a). This is one reason why, the Agency must not issue an addendum less than 120 hours prior to the date for receipt of bids. Otherwise, the time period to protest the addendum could extend beyond the time period to protest an award (10 day period). Moreover, this 120 hour period gives potential bidders the opportunity to digest and accurately price the addendum.
6.5.5 The Agency may issue an addendum postponing the date for receipt of bids or withdrawing the invitation for bids at any time prior to the time set for bid opening.
6.5.6 When the Agency does issue an addendum to reschedule a bid opening, OSE recommends that the Agency schedule the new bid opening date no less than 5 calendar days from the issue date of the addendum. (See 6.6.4 below.)
6.5.7 The bid documents notify potential bidders requesting plans to provide contact information, including an email address, to the party providing the plans. The Agency or its representative must retain this contact information in order to notify plan holders of addenda.
6.5.8 If an agency conducts a mandatory pre-bid conference, the Agency must send addenda to all to those entities attending the pre-bid conference. If the Agency does not conduct a mandatory pre-bid conference, the Agency should send addenda to all plan holders of record.
6.5.9 The bid form has a location for bidders to acknowledge receipt of addenda.
6.6 BID POSTPONEMENT
6.6.1 The Agency may postpone a bid opening for any of the following reasons:
A. Causes beyond the control of the bidders (e.g. flood, fire, accident, weather conditions);
B. Emergency or unanticipated events that interrupt normal government operations;
C. Revision of specifications and/or drawings; or
D. When postponement is clearly in the best interest of the State.
6.6.2 The Agency may postpone bids by issuing an addendum any time prior to the time set for the bid opening. If there is not enough time to issue a written addendum prior to the time set for the bid opening, the Agency must notify bidders by telephone or other appropriate means followed with a written copy of the addendum. If possible, the Agency should verify with bidders their receipt of the notice of postponement.
6.6.3 When time permits, the Agency must advertise notification of the postponement of bids in SCBO.
6.6.4 The addendum should notify the bidders of the postponement of the original bid date and establish a new bid date. The new bid date should be at least five days after the original bid date.
6.7 BID CANCELLATION
6.7.1 The Agency may cancel the invitation for bids by written addendum at any time prior to the time set for the bid opening.
6.7.2 The Agency may issue the addendum as late as the time set for opening of bids. The Agency should send the addendum to all plan holders of record as soon as the agency determines that it will cancel the bid opening.
6.7.3 When time permits, the Agency must advertise the notification of the cancellation of bids in SCBO.
6.8 BID OPENINGS
6.8.1 Receipt of Bids Prior to Bid Opening – SC Code Ann § 11-35-1520(4)
A. The Agency must keep all Bids (including modifications) it receives before the time of opening secure and unopened. However, the Agency’s Procurement Officer or his/her designee may open unidentified bids solely for the purpose of identification.
B. If a person opens a sealed bid by mistake, they should immediately write their signature and position on the envelope and deliver it to the Agency’s procurement officer. This official must reseal the envelope and write on it an explanation of the opening, the date and time opened, the invitation for bids' number and his/her signature.
6.8.2 Public Opening of Bids – sc code ann § 11-35-1520(5) and Reg. 19-445.2050
A. TIME FOR CONDUCTING BID OPENING
1. The agency must publicly open bids at the time set forth in the SE-310, Invitation for Construction Services as the deadline for the receipt of bids.
2. In the event of a force majeure preventing the Agency from receiving bids, the Agency may postpone the bid opening until the next business day at the time originally specified.
B. BIDS RECEIVED AFTER DEADLINE FOR RECEIPT
1. The Agency must receive bids at the address indicated in the SE-310, Invitation for Construction Services, and published in SCBO before the time for bid opening. If the indicated address is served by a central mailroom, delivery of bids sent by mail or other special delivery service (UPS, FED-EX, etc.) to that mailroom is sufficient.
2. The Agency must reject bids not delivered at the indicated location or the Agency mailroom before the time of the bid opening.
3. The Agency should return any bid it rejects for being late to the bidder unopened.
4. If, after the bid opening, the Agency discovers a bid delivered at the location for delivery or the mailroom before the time for bid opening, the Agency must open and consider the bid. In such event, the Agency must document the circumstances in writing and place it in its procurement file.
C. CONDUCTING THE BID OPENING
1. At the time set for the bid opening, as indicated on the SE-310, Invitation for Construction Services, or as modified by addendum, the procurement officer should declare that the time for receipt of bids has arrived and that he/she will no longer accept bids. The Agency must reject all bids received after this time and return them to the bidders unopened.
2. After declaring the arrival of the time for receipt of bids, the procurement officer should publicly give his/her name and the names of the witnesses and record this information on the bid tabulation sheet.
3. The procurement officer should then open timely bids individually and read them in the presence of one or more witnesses. When only one bidder submits a timely bid, the procurement officer should open the bid and read it aloud.